Citation Nr: 1442077
Decision Date: 09/19/14 Archive Date: 09/30/14
DOCKET NO. 11-06 291 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota
THE ISSUE
Entitlement to service connection for a depressive disorder.
REPRESENTATION
Appellant represented by: Minnesota Department of Veterans Affairs
ATTORNEY FOR THE BOARD
M. R. Harrigan Smith, Counsel
INTRODUCTION
The Veteran had active service from September 1966 to September 1968 (with other unconfirmed service).
This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Paul, Minnesota.
This issue was remanded for additional development in December 2013. It is again before the Board for additional appellate review.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran claims that he is entitled to service connection for a depressive disorder.
In its prior remand, the Board noted evidence in the record that the Veteran's depression had preexisted service. Pursuant to 38 U.S.C.A. § 1111, 'every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination.' Thus, because no psychiatric disorder was noted upon entry into service, the Veteran is presumed sound. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service.
A December 2009 VA examination report reflected the examiner's opinion that records indicated a history of depression going back to age 17 and that it was "probably not" related to military service. The Board found that this examination was inadequate, and remanded in order to obtain an opinion as to whether there was clear and unmistakable evidence showing both that the Veteran's depression preexisted service and that it was not aggravated by service.
A VA examiner provided an opinion in June 2014. The examiner opined that Based on review of the Veteran's records, there was clear and unmistakable (undebatable) evidence that his depressive disorder pre-existed his military service. The examiner referred to evidence in the record reflecting that the Veteran had depression since age 17. The Board finds that this rationale is sufficient to support the examiner's finding that clear and unmistakable evidence reflected that his depression preexisted service.
In addition, the examiner opined that it could be concluded with clear and unmistakable (undebatable) certainty that the preexisting disorder did not undergo a worsening in service to a permanent degree beyond that which would be due to a natural progression of the disability. However, as a rationale, he noted only that Veteran did not engage in any "serious effort" to seek mental health treatment for his depressive disorder until 2002, over thirty years after his discharge.
When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant v. West, 17 Vet. App. 116 (2003). Here, the Board finds that the examiner's rationale does not rise to the level of clear and unmistakable evidence. As such, an addendum opinion should be obtained to determine whether there is clear and unmistakable evidence that the Veteran's depression was not aggravated during active duty, with a thorough rationale for any opinion rendered.
Accordingly, the case is REMANDED for the following action:
1. The Veteran's claims file should be returned to the VA examiner who provided the June 2014 opinion to review the record and provide an opinion as to whether there is clear and unmistakable evidence that the Veteran's preexisting depression was not aggravated during service, with a more thorough rationale than earlier provided.
If further examination or testing is needed, this should be undertaken.
The claims file (including paper records and/or records in the Virtual VA and VBMS systems) and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum.
The examiner should determine if it can be concluded with clear and unmistakable (undebatable) certainty that the preexisting disorder did not undergo a worsening in service to a permanent degree beyond that which would be due to a natural progression of the disability.
The examiner should provide a rationale to support the opinion. Please note that the absence of evidence of treatment for depression for any period of time cannot, standing alone, serve as the basis for an opinion.
The examiner must provide reasons for each opinion.
If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.
The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.
If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so.
2. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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J.A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).